Gawker Media, LLC v. Bollea

• Decision Date: 02 July 2015
• Docket Number: No. 2D15–2857.,2D15–2857.
• Citation: 170 So.3d 125
• Parties: GAWKER MEDIA, LLC; Nick Denton; and A.J. Daulerio, Petitioners, v. Terry Gene BOLLEA, professionally known as HULK HOGAN, Respondent.
• Court: Florida District Court of Appeals

170 So.3d 125

GAWKER MEDIA, LLC; Nick Denton; and A.J. Daulerio, Petitioners

v.Terry Gene BOLLEA, professionally known as HULK HOGAN, Respondent.

No. 2D15–2857.

District Court of Appeal of Florida, Second District.

July 2, 2015.

Gregg D. Thomas and Rachel E. Fugate of Thomas & LoCicero PL, Tampa; and Seth D. Berlin and Alia L. Smith of Levine Sullivan Koch & Schultz, LLP, Washington, District of Columbia, for Petitioners.

David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; Kenneth G. Turkel and Christina K. Ramirez of Bajo Cuva Cohen & Turkel, P.A., Tampa; and Charles J. Harder and Douglas E. Mirell of Harder Mirell & Abrams LLP, Los Angeles, California, for Respondent.

Opinion

NORTHCUTT, Judge.

This controversy sprang from a seed planted sometime in 2006, when Terry Bollea, a celebrated former professional wrestler known publicly as “Hulk Hogan,” had sex with Heather Clem, then married to Bollea's friend Todd Clem, a “shock jock” radio personality whose nom de scène is “Bubba the Love Sponge.” The encounter was videotaped, with audio, allegedly without Bollea's knowledge. Six years later, in October 2012, a celebrity news and gossip website named Gawker.com posted an excerpt of the videotape to the Internet. Litigation ensued.

After a brief initial foray into federal court, in December 2012 Bollea filed suit in Florida's Sixth Circuit seeking injunctive relief and damages from Heather Clem, sundry entities and individuals affiliated with the Gawker site, and others. The circuit court case is ongoing, and it has darkened our door more than once.¹ Before us today is a mandamus proceeding in which the Gawker defendants contend that the circuit court's June 19, 2015, order setting trial for the week of July 6 deviates from Florida Rule of Civil Procedure 1.440. Indeed the order violates the rule, and we grant the petition.

To place the issue in proper context, it must be noted that one of the initial Gawker defendants was a Budapest-based company named Blogwire Hungary Szellemi Alkotást Hasznosító, KFT. Blogwire contested the attempted exercise of Florida long-arm jurisdiction over it, and it appealed the circuit court's order denying its motion to dismiss on that ground. Consequently, and significantly, long after the other defendants either had been dismissed from the case or had filed answers and affirmative defenses to Bollea's complaint, Blogwire had not done so. On April 17, 2015, this court reversed and remanded for further proceedings on Blogwire's motion to dismiss. Blogwire Hung. Szellemi Alkotst Hasznost, KFT v. Bollea, 162 So.3d 1116 (Fla. 2d DCA 2015).

While Blogwire's appeal was pending in the fall of 2014, Bollea grew eager to place at least part of the action at issue. He moved the circuit court to sever the claims against Blogwire from the balance of the case and to set the claims against the other defendants for trial. Over the Gawker defendants' strenuous objections, the court granted the motion. By order dated November 4, 2014, the court severed the claims as mentioned, and it tentatively scheduled trial against all defendants other than Blogwire for July 2015. At a hearing the next month, the court finalized the trial date as July 6, memorializing the same in a written order setting trial entered February 18, 2015. The Gawker defendants challenged both rulings by petitions for writ of certiorari, contending that severing defendants is not permitted and that, because Blogwire had not answered the complaint, the case was not at issue and could not be set for trial. We consolidated the petitions and, on May 7, 2015, we quashed both orders.² Gawker Media, LLC v. Bollea, Case Nos. 2D14–5591, 2D15–1259, consolidated.

The instant proceeding was occasioned by what happened in the following weeks. Bollea was determined to maintain the July 6 trial date, if possible. In a May 19, 2015, letter to the judge and again at a May 29 motions hearing, his counsel asked the court to keep the July 6 date reserved, theorizing that if Bollea voluntarily dismissed Blogwire from the case, the issues raised in the certiorari proceeding would vanish and his suit could proceed to trial against the other defendants as planned. At the May 29 hearing the court agreed to keep the July 6 trial date open. It also orally granted Bollea's pending motion to file an amended complaint seeking punitive damages.

As foretold, on June 18, the day before a scheduled case management conference, Bollea filed a notice of voluntary dismissal with prejudice as to Blogwire and filed his amended complaint seeking punitive damages by interlineation in the prayer for relief. He also filed a “notice that action is still at issue,” asking the circuit court to reset the case for trial beginning on the previously scheduled date, July 6.

The next day, June 19, the circuit court entered a written order reflecting its earlier oral ruling that Bollea could amend his complaint to seek punitive damages. The order also stated that “[n]o further pleading by Defendants in response to plaintiff's Amended Complaint, as amended by interlineation, is required, and Gawker Defendants are deemed to have denied Mr. Bollea's claim for punitive damages.”

In the meantime, on the morning of June 19, the Gawker defendants had filed a written objection to Bollea's notice that the case was at issue, pointing out among other things that under rule 1.440 a case is not at issue until twenty days have elapsed after the pleadings are closed. At the case management conference that day, the Gawker defendants emphatically opposed setting the case for trial. But the circuit court, persuaded by Bollea's side that it could disregard the opponents' objections as innocuous technicalities, entered a written order setting trial for July 6. Three days later, on June 22, the Gawker defendants filed the instant proceeding in this court.³

Although we easily understand why Bollea and the circuit court went to lengths to preserve the July 6 trial date, their efforts were futile from the outset—by the time the court entered its June 19 order scheduling the trial for July 6, the window for doing so had been closed for weeks. Rule 1.440(a) provides that an action is deemed at issue “after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.” Thereafter, under subsection (b) a party must serve a notice that the action is at issue and ready to be scheduled for trial. Per subsection (c), the court must then enter an order setting trial no fewer than thirty days hence. The rule thus prescribes a minimum interval of fifty days between service of the last pleading and commencement of trial.

Fifty days prior to July 6 was May 17, which was a Sunday. Therefore, to permit a trial on July 6, the last pleading in the case must have been served no later than Friday, May 15; Bollea's notice that the action was at issue must have been filed no sooner than June 4 or later than June 6; and the court's order setting trial must have been entered no later than June 6.

None of that happened, of course. As of May 15, the case simply was not at issue. This court had quashed both the order severing the claims against Blogwire from the rest of the case and the February order setting the action against the other defendants for trial. Blogwire had yet to answer Bollea's complaint; its motion to dismiss for lack of personal jurisdiction was pending and awaiting further proceedings pursuant to this court's disposition of Blogwire's appeal the previous month. Finally, as of May 15 the question whether Bollea would be permitted to amend his pleadings to seek punitive damages was unsettled, and it would not be decided until the motions hearing on May 29.

Bollea attempted to eliminate the Blogwire hindrance by dismissing it from the suit on June 18. But according to rule 1.440, this was far too late for purposes of a July 6 trial date. (In fact, it was already too late when Bollea's counsel first raised the possibility of dismissing Blogwire in his May 19 letter to the judge.) And in any event, Bollea filed his amended complaint seeking punitive damages from the other defendants on June 18, as well. Even in Blogwire's absence, then, under rule 1.440 the case against the remaining defendants would not be at issue until twenty days later, on July 8. Even if the circuit court acted on that very day, it could not set a trial date earlier than August 7.

This was not altered by the court's declaration that the defendants were excused from responding to Bollea's new punitive damages claim. Rule 1.440(b) provides that “[t]he party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served.” In other words, the rule grants that party, not the court, discretion to dispense with the prescribed twenty-day interlude before the action is at issue. Regardless, even if Bollea's and the court's machinations had placed the action at issue on June 19, at that point the court could set trial no earlier than July 19.

The June 19 order setting trial for July 6 plainly violated rule 1.440. For many years, the appellate courts of this state have emphasized that the rule's specifications are mandatory and they have admonished trial courts to strictly adhere to them.

Teelucksingh v. Teelucksingh, 21 So.3d 37 (Fla. 2d DCA 2009) ; Broussard v. Broussard, 506 So.2d 463 (Fla. 2d DCA 1987) ; R.J. Reynolds Tobacco Co. v. Anderson, 90 So.3d 289 (Fla. 2d DCA 2012) (table decision) (text of order available at 2012 WL 2428282 ); Tucker v. Bank of N.Y. Mellon, ––– So.3d ––––, 2014 WL 1491630, 39 Fla. L. Weekly D789 (Fla. 3d DCA Apr. 16, 2014) ; Lurtz v. Bank of N.Y. Mellon, 162 So.3d 11 (Fla. 4th DCA 2014) ; BAC Home Loans Servicing L.P. v. Parrish, 146 So.3d 526 (Fla. 1st DCA 2014) ; Genuine Parts Co. v. Parsons, 917 So.2d 419 (Fla. 4th DCA 2006) ; Precision Constructors,...